The opinion of the court was delivered by: JOHN FACCIOLA, Magistrate Judge

MEMORANDUM OPINION

Plaintiffs Blue Cross Blue Shield of Minnesota and Massachusetts and
Federated Mutual Insurance Company (hereafter "the Blues")*fn1 served a
notice of deposition upon defendants Mylan Laboratories and Mylan
Pharmaceuticals ("Mylan") pursuant to Rule 30(b)(6) of the Federal Rules
of Civil Procedure. Appended to the notice was a list of seventeen topics
that were the subjects of the deposition. Mylan indicated that Brian S. Roman ("Roman") was to be the 30(b)(6)
designee, and the 30(b)(6) deposition proved to be remarkably
contentious. The Blues argue that Mylan's objections and its counsel's
direction to Roman not to answer certain questions rendered the
deposition an exercise in futility. For its part, Mylan insists that the
Blues should be sanctioned because their questions to Roman were
duplicative of questions asked of other witnesses and exceeded the scope
of the seventeen topics in the notice of the deposition. Hence, by this
Memorandum Opinion, I resolve Plaintiffs' Motion to Compel Defendants
Mylan Laboratories, Inc. and Mylan Pharmaceuticals, Inc., to Make
Available for Deposition a Knowledgeable and Prepared Corporate
Designee, as Required under Rule 30(b)(6) and for Leave for Additional
Time to Question Such Designee [#528]. I defer action on Mylan's Motion
for Sanctions [#535] until the completion of the depositions that remain
to be taken.

INTRODUCTION

The major controversy that erupted during the deposition flows from
radically different perceptions of the nature of the Rule 30(b)(6)
deposition that was being taken. Mylan insists that Chief Judge Hogan
prohibited duplicative discovery, meaning that the Blues could not ask
the 30(b)(6) witness the same questions that were answered by other Mylan
employees or require him to indicate his agreement or disagreement with
statements made during the depositions of other Mylan employees. The
Blues take a very different view-there was no duplication because the
purpose and effect of the 30(b)(6) deposition of Mylan are radically
different from the purpose and effect of the deposition of an employee.
Hence, covering the same topics with a 30(b)(6) witness as were covered
with another Mylan employee in a non-30(b)(6) deposition was appropriate
because the deposition was of the corporation itself. There were other problems. The Blues complain that Mylan purposefully
selected Roman because he lacked the knowledge necessary to answer their
questions while Mylan objected again and again to questions that it
complained were not within the topics designated in the attachment to the
notice of deposition.

Hence, I am obliged to determine whether Mylan can fairly be accused of
designating as a 30(b)(6) witness a person who could not reasonably be
expected to answer the Blues' questions and the validity of Mylan's
objection that a 30(b)(6) witness need not answer a question that does
not fall within the topics identified by the Blues as the subject of the
30(b)(6) deposition. I will then turn to the actual questions that Roman
refused to or was unable to answer and decide what relief is due the
Blues if I find that they were entitled to answers from Mylan to such
questions.

I must make another point. Reading the transcript of Roman's deposition
has been an exceedingly painful experience. The frequent objections and
the reactions to them led to an atmosphere of such hostility that I did
not know whether I was reading a deposition transcript or the script of
the next episode of "the Sopranos."*fn2 That hostility and the most
fundamental difference between counsel as to the very nature of the
deposition being taken have left me with the clear belief that it was
impossible for this deposition to accomplish its purposes. Had I
anticipated that this was going to occur when counsel called me during
the deposition, I would have adjourned the deposition and insisted that
it continue in the courtroom adjacent to my chambers so that I could have
ruled immediately on the questions presented. This opinion and accompanying order represent my effort to reassert control over the
deposition.

DISCUSSION

I. A 30(b)(6) Deposition Is Different

There is a significant difference between a statement made by an
employee during a deposition and one made by a corporate designee under
Rule 30(b)(6). As explained below, the former statement can be imputed to
the corporation, but the latter is itself the corporation's statement.

A statement by an agent or servant that concerns a matter within the
scope of agency or employment and is made during the existence of the
relationship is not hearsay and can be admitted as an admission by a
party opponent. Fed.R.Evid. 801(d)(2)(D). Hence, if a bus driver were to
state, as he exited from a bus after an accident, that the brakes
failed, that would be admissible against the transit company that owns
the bus. Similarly, when a deposition is taken of the bus driver, as long
as he is still employed by the transit company, his statements about the
cause of the accident are admissible as admissions by the corporate
entity. The finder of fact may consider them as evidence, but the company
is free to counter such statements with evidence demonstrating that the
accident was caused by other factors. This is because the statements are
only attributable to the corporation and do not represent the definitive
position of the corporate entity.

On the other hand, statements made during a 30(b)(6) deposition by a
corporate designee are statements of the corporation itself. If the
transit company were to designate a 30(b)(6) witness and that individual
stated during his deposition that the brakes failed, that statement would
be admissible against the transit company as a statement by the
organization. See Fed.R. Civ. P. 30(b)(6); Fed.R.Evid. 801(d)(2)(A). The finder of fact would
evaluate this evidence as an admission by the company itself because it
is through a 30(b)(6) deponent that an organization or corporation
speaks. Simply put, the 30(b)(6) deposition presents for the finder of
fact an unequivocal admission by a party opponent.

It follows, therefore, that it is not duplicative to ask a 30(b)(6)
deponent a question previously asked of a non-30(b)(6) witness because
there is a legally significant difference in the two depositions. I
therefore see no impediment to the Blues reading to the 30(b)(6) witness
the testimony of another Mylan employee and asking questions about that
testimony, culminating in a question as to whether the 30(b)(6) witness
disagreed with the testimony or had reason to believe that it was not
true. This mechanism was obviously designed to have Mylan, as a party and
deponent, adopt as its testimony the testimony of one of its employees or
indicate why Mylan's testimony was different so that the difference, once
highlighted and explained, would become the testimony of Mylan, even if
it differed from the employee's.

By the same token, the unique purpose of a 30(b)(6) deposition should
inform the court's exercise of discretion in supervising it in any case,
let alone this one where the Chief Judge has insisted that neither the
court's nor the parties' resources be needlessly expended in duplicative
discovery. If, as occurred here, the deposition occurs at the end of
discovery, the deposition must be designed to elicit statements that can
be used to articulate a party's position and thereby shape an admission
from it. It should not be used to plow old ground for no apparent
purpose.

Additionally, certain questions are so intrinsically factual that
seeking the corporation's answer while already having a sufficient answer
that binds the corporation as an admission is a waste of time in any case
and, in this case, surely offends the Chief Judge's prohibition against duplicative discovery. Finally, if documents that are obviously authentic
and admissible as business records establish a fact, asking the 30(b)(6)
witness whether that fact is true is wasteful. While inquiry into the
meaning of an ambiguous document is ...

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